Plaintiff, a duly licensed attorney at law, on May 8, 1919, sued the defendant to recover $14,000, the balance due on an attorney's fee, with interest from November 12, 1918. The cause was tried by a jury, resulting in a verdict and judgment for plaintiff, on June 10, 1922, for $7,000 and interest, $1,545.25, aggregating $8,545.25. On appeal to the St. Louis Court of Appeals, that court, of its own motion, transferred the *Page 268 cause to this court because the amount in dispute, exclusive of costs, exceeds the sum of $7,500. [Sec. 2418, R.S. 1919.]
The Federal grand jury at the city of St. Louis, in January, 1918, returned an indictment against the defendant, charging him with sundry violations of an Act of Congress, known as the Espionage Act, a violation of which was punishable by a fine not exceeding $10,000, or by imprisonment for a term not exceeding twenty years, or by both such fine and imprisonment. The defendant retained Mr. Frumberg, an attorney at law, for his defense. A demurrer to the indictment was sustained, and a second indictment was found against the defendant early in June, 1918. At the defendant's suggestion, Mr. Frumberg retained the plaintiff as counsel for the defendant, because of his experience as United States District Attorney, and of his high standing in his profession, paying him a retainer of $1,000 and assuring him that the defendant would compensate him liberally in the event of the defendant's acquittal. Blodgett from that time on took the lead in the defense. A demurrer to the second indictment was sustained. A third indictment, containing ten counts, was returned on October 11, 1918.
The first time Blodgett saw the defendant to know him was at Frumberg's office on Sunday, October 20, 1918. Koenig there told plaintiff he had agreed to pay Frumberg $25,000 in the event of his acquittal and that he wanted plaintiff to come into the case. He said money was no object to him; that he was worth a million dollars, and would kill himself if he was convicted. They discussed the case, and Koenig said he would take up the matter of plaintiff's fee in a few days. On October 28th Koenig agreed to pay plaintiff $15,000, if acquitted. This proposition was accepted by plaintiff. Blodgett told the defendant that Frumberg had paid him $1,000 as a retainer. Koenig said that was all right; that he had instructed Frumberg to pay him that sum as a retainer. The trial lasted four days, and at the conclusion *Page 269 of the case for the prosecution the court sustained a demurrer to the evidence and directed the jury to return a verdict of not guilty, and the defendant was discharged.
The evidence for the plaintiff is that from the time he accepted the retainer he gave his time exclusively for a period of one hundred days to the preparation for and the trial of the case and that $15,000 was a reasonable fee. Nine prominent attorneys testified that a reasonable fee for plaintiff's services would be from $15,000 to $20,000. This will suffice for the case made by the plaintiff.
The defendant testified that he employed Mr. Frumberg and paid him $7,500 for defending him against the charges in the indictment; that Frumberg employed Blodgett on his own suggestion and agreed to pay him out of his own pocket; that he, the defendant, did not employ plaintiff or agree to pay him a dollar, and that plaintiff's testimony in that respect was a lie. One attorney testified that $5,000 would be a reasonable fee for plaintiff's services; another that $8,000 would be a reasonable fee.
The court gave the following instruction for the plaintiff:
"1. If the jury find from the evidence that on or about October 28, 1918, the defendant was under indictment in the United States Court for the Eastern Division of the Eastern District of Missouri, charged by the United States Government with certain crimes against the laws of the United States, and that defendant Koenig employed plaintiff as a lawyer to assist in his defense against said criminal charges, and that defendant did freely and voluntarily, and without any fraud or unfairness on the part of plaintiff having been practiced upon him, knowingly and fairly agree with plaintiff that he would pay plaintiff fifteen thousand dollars for his services as an attorney in assisting in defendant's defense upon the trial of such criminal charges if the trial thereof should result in defendant's discharge *Page 270 and acquittal, and that plaintiff did then and there accept such employment, and did assist in the trial of defendant upon said criminal charges, and did in all things perform all necessary acts on plaintiff's part, as one of the attorneys of defendant, in defending defendant against said criminal charges, and that at the trial thereof defendant was acquitted and discharged from said criminal charges, then your verdict should be for plaintiff in the sum of fourteen thousand dollars, with six per cent interest thereon per annum from the date of the discharge and acquittal of defendant, which was November 12, 1918."
The court also gave the following instructions for the defendant:
"2. The court instructs the jury that if you find and believe from the evidence that the defendant Koenig did not promise or agree to pay to the plaintiff the sum of fifteen thousand dollars, as attorney's fees, then your verdict must be for the defendant.
"3. The court instructs the jury that if you find and believe from the evidence that the relation of attorney and client existed between the plaintiff and defendant at the time of the execution of the contract, if any, sued on, then you are advised that the burden of proof is on the plaintiff to show by the greater weight or preponderance of the evidence that the contract, if any, was fair and just, and that the plaintiff took no unfair advantage of the defendant, and that he did not contract for a greater compensation than his services were reasonably worth with reference to the character of the controversy, the skill and labor required, the responsibility imposed, the standing and ability of the attorney, together with the results attained, and defendant's ability to pay.
"4. The court instructs the jury that if the relationship of attorney and client had already been existing or established at the time that the contract, if any, in question was made, that then and in that event before you can find in favor of the plaintiff and against the defendant *Page 271 in this case you must find and believe from the evidence, first, that the contract, if any, was fair and equitable and that the defendant acted freely and understandingly with reference thereto, and secondly, that the amount agreed to be paid is the reasonable value of the services rendered.
"5. The jury are instructed that the opinions of the parties who testified as experts are merely advisory and not binding upon the jury, and the jury should accord to them such weight as they believe, from all the facts and circumstances in evidence, the same are entitled to receive.
"6. The court instructs the jury that the charges preferred against the defendant Koenig in the indictment read in evidence are no proof of the truth thereof, and that the defendant in this case, against whom the indictment was found, has been acquitted of the crime charged therein."
The petition, omitting formal parts, alleges, in substance, that defendant was indicted by the Federal grand jury on October 11, 1918; that plaintiff was employed by defendant in connection with the law firm of Frumberg Russell to defend him and received a retainer of $1,000, and that on October 28, 1918, the defendant undertook and agreed to pay plaintiff a fee of $15,000 for his services in said cause in the event of his acquittal; that plaintiff accepted said employment and took up the defense of the defendant in connection with said other attorneys and prepared for the trial, which began on November 8th and closed on November 12th; that he fully performed his said agreement and undertaking, and that through the efforts of himself and said associate attorneys the defendant was acquitted and discharged at said trial; that plaintiff demanded payment of his fee and same has been refused.
The answer is a general denial.
I. When the verdict was returned the defendant filed a motion for judgment non obstante. Learned counsel *Page 272 contend that, it being conceded that the fiduciary relation of attorney and client existed at the time the allegedNon Obstante contract between the plaintiff and the defendantVeredicto. was entered into, the burden was on the plaintiff to affirmatively establish that the contract was fair, equitable and just, and that the fee agreed to be paid was reasonable and not excessive; that unless such facts were found to exist, there could be no recovery on the contract, and that the verdict of the jury for $7,000 and interest conclusively establishes that $15,000 was not a reasonable fee, and is equivalent to a finding that the alleged contract was not binding or obligatory on the defendant; hence the court erred in overruling defendant's motion for judgment non obstanteveredicto.
The difficulty with this contention is that this character of motion is available only to the plaintiff, and not the defendant; the remedy for the defendant in such or similar circumstances being a motion in arrest of judgment. "Such a motion can only be sustained when it appears from the record that the allegations in the answer constitute no defense to the action [citing authorities] and even then such a judgment can only be rendered in a clear case on the application of plaintiff made after verdict and before entry of judgment on the verdict." [Hurt v. Ford, 142 Mo. 283, 296, 44 S.W. 228. See King v. Grocer Co.,188 Mo. App. 235, 238, 175 S.W. 77; 3 Bouvier's Law Dict. (Rawle's Third Rev.) 2355; 1 Freeman on Judgments (5 Ed.) 810, and 1 Black on Judgments (2 Ed.) 816.] There is no merit in this contention.
II. It is contended by defendant that plaintiff, having sued on an express contract, could not recover on a quantum meruit, and hence the court erred in overruling the motionExpress Contract: in arrest and entering judgment on theQuantum verdict. Let it be conceded, for the purposesMeruit. of the case, that plaintiff sued on an express contract for *Page 273 $14,000, after having received a retainer fee of $1,000. The answer is a general denial.
Instruction 2, given in behalf of defendant, reads as follows: "The court instructs the jury that if you find and believe from the evidence that the defendant Koenig did not promise or agree to pay to the plaintiff the sum of fifteen thousand dollars, as attorney's fees, then your verdict must be for the defendant."
The verdict returned, reads as follows: "We, the jury in the above cause, find in favor of the plaintiff on the issues herein joined, and assess plaintiff's damages at the sum of seven thousand dollars with interest thereon at six per cent per annum from November 12, 1918, to June 10, 1922, amounting to $1,545.23, aggregating $8,545.23."
What were the issues joined? Clearly an assertion by plaintiff that defendant owed him $15,000 for legal services rendered, with a general denial on the part of defendant. The jury were plainly told in defendant's Instruction 2, supra, that if defendant did not agree to pay plaintiff the $15,000 they must find for defendant. The jury, having found this issue in favor of plaintiff, thereby sustained the contention of the latter, that a contract was made for the payment of $15,000. We therefore hold that plaintiff recovered on the contract as alleged, although the jury failed to give him the full amount of compensation shown by his contract, and nine witnesses who testified as to the reasonableness of same. The plaintiff might have moved for judgment non obstante for the full contract price, but having elected to accept the verdict of the jury, how has the defendant been injured, when he is let off with less than the amount contracted for, as shown by the verdict of the jury in finding the issues for plaintiff?
III. It is manifest from reading Instructions 3 and 4, given in behalf of defendant, that the court imposed upon plaintiff a greater duty in making his case than the law requires on such facts as are disclosed by the *Page 274 record herein. These instructions, in our opinion, are largely responsible for the compromised verdict in this case, as the jury evidently thought, after hearing the experts on both sides as to the value of the services rendered, that they had the legal right to determine for themselves, the amount which they should allow plaintiff. The court, in the giving of these instructions three and four, seems to have been of the impression that they were necessary and proper under the ruling made by Judge WALKER in Morton v. Forsee, 249 Mo. 409, and following, where the record recites, page 426: "That Pitt was the attorney and business agent of the defendant for some years prior to this contract, and was at the time under contract with her as her legal adviser, there is no question. Does this of itself preclude the admission of the contract in evidence, until such evidence is introduced by plaintiff as will rebut such presumption?"
Judge WALKER, on the facts above stated, answered in the affirmative, and we think his ruling is sustained by the weight of authority, based on the evidence before him. On the record before us, the defendant, in his answer, denied that he ever employed plaintiff as an attorney. He testified at the trial, that he never employed plaintiff as counsel in his litigation and that he never had twenty-five words of conversation with plaintiff in his life. According to his own pleading and evidence, there was no confidential relation existing between plaintiff and defendant which called upon the former to prove that no unfair advantage was taken of the latter. In the Morton-Forsee case, the answer pleaded the facts showing the confidential relation, which stood admitted at the trial.
The evidence here tends to show that plaintiff and defendant were dealing at arms length with each other; that plaintiff was not hired on account of any confidential relations which he sustained toward defendant, but solely on account of the experience which he had had, as District Attorney in the United States court. As *Page 275 shown by the record, the defendant was overwhelmed with litigation of a serious nature, and employed plaintiff on account of his experience as a practitioner in the Federal court, to assist Frumberg in the defense of these criminal cases. He was successfully defended by these attorneys, and, as we think the evidence shows, agreed to pay plaintiff $15,000 for his services. The jury found that defendant made the agreement set out in petition. He does not claim, if the agreement was made, that the verdict of the jury is excessive. The plaintiff acquiesced in said verdict, and the defendant, having brought about such finding by his instructions three and four, which enabled him to get off with less than he owed plaintiff, is in no position to complain of the verdict.
The record discloses that nine prominent attorneys in St. Louis testified, in behalf of plaintiff, that a reasonable fee for the services rendered would be from $15,000 to $20,000. One witness for defendant fixed the compensation at $5,000 and another at $8,000. The jury found the issues as to the contract for $15,000 in favor of plaintiff. Should the case be reversed because the jury let the defendant off with less than half the amount plaintiff was entitled to recover when the latter has acquiesced in the verdict as returned?
We have examined the other matters presented, and find that the only errors, if any, committed, were against the respondent. The judgment below was for the right party, and is accordingly affirmed.